FOR IMMEDIATE RELEASE:
Thursday, February 12, 2009

Contact: Steve Hopcraft 916/457-5546,
Steve@hopcraft.com

SACRAMENTO - The California Applicants Attorneys Association (CAAA) and VotersInjuredatWork.org today applauded Sen. Mark DeSaulnier’s (D – Martinez), legislation (SB 145) to ban race, gender, genetic bias in handling workers compensation disability claims. “SB 145 would ban reducing disability compensation based on factors such as age, race and gender. Currently, insurers and doctors are reducing permanent disability insurance payments based on age, race and gender. Discrimination has reduced compensation to disabled workers by millions of dollars,” said Sue Borg, Legislative Chair for CAAA, whose members represent those injured at work. “On Abraham Lincoln’s 200th birthday, it’s past time to ensure that all injured workers are treated equally by insurers in compensating permanent disabilities from work injuries.”

The measure is in part a response to the case of Taneka Talley, a Fairfield Dollar Tree employee stabbed at work by a racist customer. The insurer and employer reduced the Talley family’s compensation, claiming the racial motivation was based on a “personal” characteristic. SB 145 bans discrimination in determining disability compensation to workers injured on the job. Sen. DeSaulnier’s legislation incorporates current federal and state civil rights protections into California’s workers compensation laws. SB 145 comes in the wake of a flood of medical reports written by physicians who say they are compelled by SB 899 to apportion permanent disability to factors such as age, race, and ethnicity.

Jesse Ceniceros, president of VotersInjuredatWork.org, said, “Californians go to work each day and do their jobs, believing that if injured at work they will receive medical care and compensation. Since SB 899 was passed, that expectation no longer holds. Tens of thousands of Californians injured at work are NOT receiving fair compensation for their injuries at work. One reason is that insurers are being allowed to reduce permanent disability compensation based on race, gender, age, national origin and other discriminatory factors.”

Until SB 899, employers could not penalize a worker for a pre-existing condition if it did not impair their ability to do their job. Now, insurance companies aggressively seek to reduce benefits based on “risk factors” relating to certain demographic groups. A risk factor is something that increases one’s chance of getting a disease. Reducing compensation based on “risk factors” penalizes an individual for being part of a certain race, gender or age group, regardless of whether the individual had any symptoms or whether the “risk factor” affected the ability to do the job.

There have been several court cases challenging the reduction of benefits based on “risk factors.” “Insurers and their doctors say women, minorities or older workers are more likely to develop certain conditions,” said Borg. “Then, without any evidence these factors contributed to the work injury, or were even known or symptomatic prior to the work injury, they reduce disability compensation for people in those groups.”

Here are some examples of discrimination in workers compensation benefits:

• A San Diego African-American Costco worker who developed hypertension after exposure to toxic chemicals on the job lost half of his permanent disability compensation because the doctor concluded that African-Americans are more susceptible to hypertension. The man had no history of hypertension.
• A doctor admitted under oath that an African-American man with a heart attack would receive lower benefits than a white man with the same injury.
• Female workers, especially those over 40, are receiving less compensation for carpal tunnel injuries than men – simply because women over 40 are those most likely to develop carpal tunnel injuries.

Apportionment is a mechanism to assure that employers are not held responsible for a "pre-existing" disability of an employee injured on the job. Some types of apportionment are not discriminatory. For example, any prior compensation received can be deducted from a subsequent award should the worker suffer a further disability to the same body part.